By Natalie Smyth

Purchasers entering into a Contract for the purchase of residential or commercial property in Queensland may require the Contract to be subject to obtaining satisfactory finance. Such a provision is often an important and essential term of the Contract entitling a purchaser to terminate the Contract in the event that satisfactory finance is not obtained.

In circumstances where the finance condition is vague or uncertain as to be meaningless, it can render the clause unenforceable and purchasers may find themselves in a situation where they are legally bound to complete the Contract in the absence of obtaining finance.

In the Fourteenth Edition of the REIQ Contract for the sale of Houses and Residential Land, in order for the Contract to be subject to the finance condition, all of the “finance amount” “financier” and “finance date” sections in the reference schedule must be completed. It is common practise for real estate agents in Queensland to complete the reference schedule of the Contract, and we often seen the phrase “sufficient to complete” next to the “finance amount” heading, as opposed to an exact dollar figure.

Failure to insert an exact dollar figure could be problematic in circumstances where a purchaser also requires finance to cover:-

1. any potential transfer duty imposed on the transfer of property;
2. title registration fees; and
3. legal fees.

It could be argued that a purchaser who obtains finance for the balance purchase price has obtained an amount that is “sufficient to complete” the purchase. The fact that a purchaser, who requires finance to pay a stamp duty liability or legal fees, has only been able to secure finance for the balance purchase price, may find themselves unable to rely on the finance condition, as technically, those liabilities are extraneous to completion of the Contract.

What is the Court’s view?

In the High Court case of Meehan V Jones & Ors (1982), a purchaser sought specific performance of a contract of sale expressed to be executed subject to “the Purchaser or his nominee receiving approval for finance on satisfactory terms and conditions in an amount sufficient to complete the purchase.”

Facts of Meehan v Jones

The purchaser had obtained finance and had notified the Seller of his intention to proceed with the Contract, however, in the interim the Seller had found another purchaser and did not wish to proceed with the first Contract. Accordingly, the Seller sought to resist the claim for specific performance on the grounds that:-

1. the finance clause was uncertain and therefore rendered the contract void; and
2. That the clause, if certain, reserved to the purchaser a discretion or option to elect to carry out the contract, which rendered the contract illusory.

The Court’s decision

The High Court recognised that the finance clause in the Contract was potentially ambiguous in the sense that it failed to define the extent of the purchaser’s obligations with respect to the search for finance and the criteria to be used in the determination of whether such finance was in fact satisfactory, however, ultimately decided that the purchaser was entitled to specific performance of the Contract.

The Court held that the contract was not void for uncertainty because:

1. “The courts should be astute to adopt a construction which would preserve the validity of the contract” (per Mason and Wilson JJ); and
2. “It was only if the court was unable to put any definite meaning on the contract that it could be said to be uncertain” (per Gibbs CJ and Murphy J).

The Court was unanimous in holding that “subject to finance” clauses will not generally result in a contract for sale being held void for uncertainty, and the fact that a clause might contain some ambiguity will not preclude a court from ascertaining the intention of the parties with respect to the clause in question.

Further in the case of Clarke v Relstar Pty Ltd (1982), a contract expressed to be subject to the purchaser’s obtaining finance by a given date on terms wholly satisfactory to the purchaser to enable him to complete the transaction was held to be not void for uncertainty.

In the case of York Air Conditioning and Refrigeration (Australasia) Pty Ltd v The Commonwealth , Williams J commented, “If the court comes to the conclusion that parties intended to make a contract, it will if possible give effect to their intention no matter what difficulties of construction arise.”

Does this also apply to commercial contracts?  

Note 7 of the REIQ Contract for the purchase of commercial land and buildings provides: “the dollar amount of the loan being sought must be inserted in item U. Do not insert the words ‘sufficient to complete this purchase ‘or words of a similar effect.”  We understand the reason for this notation, is to avoid the situation described above, whereby a purchase may require an amount of finance that is above that required to complete the Contract.

As far as we are aware there is yet to be decision of  a court determinative of this issue..

Conclusion:-

1. The courts will attempt to give proper effect to commercial transactions;
2. If the courts can ascertain the intention of the parties with respect to the clause, and deduce a meaning from the clause, it will likely not be void for uncertainty;
3. “subject to finance” clauses will not generally result in a contract for sale being held void for uncertainty; and
4. the fact that a clause might contain some ambiguity will not preclude a court from ascertaining the intention of the parties with respect to the clause in question.

Despite Chief Justice Gibbs’ comment in Meehan v Jones with respect to “subject to finance” clauses, that their “natural effect is to leave it to the purchaser to determine whether or not the available finance is suitable to his needs,” in circumstances where a purchaser obtains finance for the balance purchase price, but requires a finance amount that is above that required to complete the contract (i.e for a stamp duty liability), in the absence of obtaining additional finance, the purchaser may still be bound to complete the Contract.  Accordingly, the phrase “sufficient to complete” is potentially ambiguous, and we therefore recommend that purchasers insert a specific dollar amount  (or a figure expressed as a percentage of the purchase price) next to the “finance amount” heading in the reference schedule that includes not only the balance purchase price, but also stamp duty costs, legal and title registration fees.

We recommend that you seek pre-contract advice from our team at Just Us Lawyers prior to signing any Contract for the Sale and Purchase of residential or commercial property in Queensland.

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